Maryland Health Benefit Exchange. Invitation for Bids

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1 Maryland Health Benefit Exchange Invitation for Bids McAfee Antivirus Software and Support IFB SOLICITATION NO.: MDM Issue Date: October 20, 2016 NOTICE Prospective Bidders who have received this document from the Maryland Health Benefit Exchange s web site or emarylandmarketplace.com, or who have received this document from a source other than the Procurement Officer, and who wish to assure receipt of any changes or additional materials related to this IFB, should immediately contact the Procurement Officer and provide their names and mailing addresses so that addenda to the IFB or other communications can be sent to them. Minority Business Enterprises are Encouraged to Respond to this Solicitation 1

2 MARYLAND HEALTH BENEFIT EXCHANGE KEY INFORMATION SUMMARY SHEET McAfee Antivirus Software and Support Invitation for Bids # MDM Invitation For Bids: McAfee Antivirus Software and Support Issue Date: October 25, 2016 Procurement Officer: Contract Monitor: Procurement Method: Bids are to be sent to ( delivery strongly preferred): Ms. Michelle Compton Procurement Officer 750 E. Pratt Street 16th Floor Baltimore, MD Phone Number: hix.procurement@maryland.gov Mr. Greg Yaculak 750 East Pratt Street 16 th Floor Baltimore, MD greg.yaculak@maryland.gov Competitive Sealed Bids (Firm Fixed Price) Maryland Health Benefit Exchange 750 East Pratt Street 16 th Floor Baltimore, MD Attn: Ms. Michelle Compton h or via in pdf format hix.procurement@maryland.gov A confirmation will be sent within 24 hours of receipt of bid. Closing Date and Time: 11:00 AM Eastern Standard Time (EST) on 11/9/2016 Bid Opening Date and Time: 2:30 PM Eastern Standard Time (EST) on 11/9/2016 at 750 E. Pratt Street, 16 th Floor, Baltimore, MD (Registration Required) MBE Subcontracting Goal: 0 % NOTE: Bidders must agree to the terms and conditions of the IFB including Attachment A Contract. MHBE is issuing this IFB separate from any other State Master Contract. In addition, Bidders must complete Attachment D Bid Form as is, please see bid form instruction 2

3 Table of Contents SECTION 1 BACKGROUND... 4 SECTION 2 SCOPE OF WORK... 6 SECTION 3 BIDDER MINIMUM QUALIFICATIONS... 7 SECTION 4 BID FORMAT, DUE DATE AND TIME... 7 SECTION 5 BASIS FOR AWARD SECTION 6 GENERAL INFORMATION AND REQUIREMENTS SECTION 7 ATTACHMENTS ATTACHMENT A CONTRACT ATTACHMENT B BID/PROPOSAL AFFIDAVIT ATTACHMENT C CONTRACT AFFIDAVIT ATTACHMENT D BID PRICE FORM ATTACHMENT E FEDERAL FUNDS ATTACHMENT ATTACHMENT E-1 CERTIFICATION AGAINST LOBBYING

4 1.1 Background on the Affordable Care Act SECTION 1 BACKGROUND The Maryland Health Benefit Exchange ( MHBE ) is an independent unit of State government established to provide Maryland s residents and small businesses with the opportunity to compare rates, benefits, and quality among insurance plans and to facilitate individuals enrollment in plans that best suit their needs. MHBE also evaluates eligibility for expanded Medicaid coverage, advanced premium tax credits ( APTC ) and other cost sharing programs designed to make coverage more affordable for individuals with household incomes below 400 percent of the federal poverty level ( FPL ). 1.2 Background on Maryland Health Benefit Exchange Procurement Under of the Insurance Article of the Maryland Code, the MHBE is subject to the provisions of State law governing procurement by exempt units. See Md. Code Ann., State Fin. & Proc The principal body that oversees MHBE procurements is the Maryland Health Benefit Exchange Board of Trustees. This particular procurement method is Competitive Sealed Bidding (Firm Fixed Price) as allowed under II. A. of the Maryland Health Benefit Exchange Procurement Policies and Procedures, which the Board of Trustees adopted in a resolution dated June 27, Federal Funding Acknowledgement This particular procurement contains federal funds from the following source: Medicaid Funds, CFDA number Execution of a Contract awarded as a result of this bid indicates the Contractor s agreement with all federal funding terms and conditions that apply to contractors receiving federal funds from these sources, including the applicable provisions described in Attachment E. 1.4 Receipt, Opening and Recording of Bids Upon receipt, each Bid and any timely modification(s) to a Bid shall remain unopened until the time and date set for Bid opening. Before Bid opening, the State may not disclose the identity of any Bidder Bids and timely modifications to Bids shall be opened publicly, at the time, date and place set forth in the Key Information Summary Sheet. The name of each Bidder, the Total Bid Price, and such other information as is deemed appropriate shall be read aloud or otherwise made available. The MHBE requests that Bidders interested in attending the Bid Opening inform the MHBE via 2 days prior to the Bid Opening Date identified in the Key Information Summary Sheet. Registration to attend the Bid opening is required. 1.5 Confidentiality of Bids 4

5 1.5.1 The Bids shall be tabulated or a Bid abstract made. The opened Bids shall be available for public inspection at a reasonable time after Bid opening, but in any case before Contract award, except to the extent the Bidder designates trade secrets or other proprietary data to be confidential as set forth in this solicitation. See Sections 1.6, for further information. 1.6 Public Information Act Notice A Bidder should give specific attention to the clear identification of those portions of its submission that it considers confidential and/or proprietary commercial information or trade secrets, and provide justification why such materials, upon request, should not be disclosed by the State under the Public Information Act, Md. Code Ann., General Provisions Article, Title 4. Bidders are advised that, upon request for this information from a third party, the MHBE is required to make an independent determination whether the information must be disclosed. 1.7 Protest/Disputes Any protest or dispute related, respectively, to this solicitation or the resulting Contract shall be subject to the provisions of Section VII of the MHBE Procurement Policies & Procedures and the Dispute provisions of the Contract resulting from this RFP (Refer to RFP Attachment A). BALANCE OF PAGE INTENTIONALLY LEFT BLANK 5

6 2.1 Background and Purpose SECTION 2 SCOPE OF WORK MHBE currently utilizes McAfee Antivirus Software and Support to support AV and malware protection for desktops, laptops and servers running Microsoft and Linux Operating Systems providing real time protection to critical devices. MHBE is seeking to renew and increase the number of licenses and support of the McAfee Complete Endpoint Protection Business, and McAfee Data Loss Prevention Endpoint solutions. A short description of the product contents for both of the above, as provided by the manufacturer is as follows: McAfee Complete EndPoint Protection Business McAfee Complete Endpoint Protection Business is an all in one solution which provides endpoint security for all the devices in the organization. McAfee Complete Endpoint Protection Business leverages intuitive centralized management in a fast and easy way to deploy, monitor, and manage security. LICENSE: Per Node DELIVERABLE: Download PRODUCT CONTENT: Endpoint Security (ENS), VirusScan Enterprise, VirusScan Command Line, Endpoint Security 10 for MAC, Host Intrusion Prevention for Desktops, Desktop Firewall, SiteAdvisor Enterprise with Web Filtering, Device Control, Drive Encryption, File & Removable Media Protection, Management of Native Encryption, VirusScan for Linux, McAfee Security for Servers with AntiSpam, Security for Microsoft SharePoint, VirusScan Enterprise for Storage, and Endpoint Intelligence Agent. Management system included: epolicy Orchestrator. File & Removable Media Protection 5.0 release includes encrypted file capability for a number of Cloud Storage Services McAfee Data Loss Prevention Endpoint LICENSE: Per Node DELIVERABLE: Download PRODUCT CONTENT: McAfee Data Loss Prevention Endpoint is a comprehensive data loss prevention solution, comprised of agent software installed on end stations across the enterprise, and a logging and analysis server, through which centrally managed policies are deployed, real time events are monitored and reports are generated. With McAfee DLP solution, centrally managed security policies are applied on end stations and are used to monitor and restrict the usage and transfer of sensitive data. The result is a cost effective and flexible solution that offers innovative methods for preventing sensitive information from leaking out of the organization and effectively addresses data loss problems. Managed by: epolicy Orchestrator, McAfee s foundational unified security management solution providing endpoint, network and compliance management with increased security and reduced costs 6

7 2.2 Scope of Work Requirements The MHBE is issuing this solicitation for the purposes of purchasing the products and associated support services in the following table. Bidders shall provide a fixed monthly fee for 12 months which includes the following components: Item # Description Quantity CEBCDE AA MFE Complete EP Protect Bus P:1 GL [P+] 450 CEBYFM AA MFE Complete EP Protect Bus 1Yr GL [P+] 250 DLPCDE AA MFE Data Loss Prvtn Endpoint P:1G [P+] Support The cost of Gold Business Support shall be included in the price for the software. Gold Business Support shall include the following: Daily updates and product upgrades Unlimited access 24/7/365 (target of less than five minutes to reach a technician regardless of problem severity) Alerts with remediation actions on the latest treats Online product evaluation environments and video of best practice guides Automated issue analysis and remediation tools SECTION 3 BIDDER MINIMUM QUALIFICATIONS The Bidder must be an authorized reseller of McAfee Antivirus Software and Support services. As proof, the Bidder must submit with the bid a letter of authorization from the manufacturer providing evidence of the rights to resell all products and services required by this IFB. 4.1 One Part Submission SECTION 4 BID FORMAT, DUE DATE AND TIME To minimize duplication costs, MHBE strongly desires e mail delivery of Bids Bidders submitting via must submit their bids and all required attachments in pdf format to hix.procurement@maryland.gov. Bidders must submit with their Bid the required minimum qualification documentation (see Section 3), and any required bid submissions (see Section 4.2.4) with one document clearly labeled as Bid, McAfee Antivirus Software and Support IFB 7

8 # MDM in time to be received by 11:00 AM, Eastern Standard Time, November 9, A second attachment labeled Bid, McAfee Antivirus Software and Support IFB # MDM PIA, in searchable Adobe.pdf format for Public Information Act (PIA) requests (this copy shall be redacted so that confidential and/or proprietary information has been removed (see Section 1.6 Public Information Act Notice ). If a Bidder chooses to submit its Bid without identifying any information that is confidential/proprietary, it should still provide the second attachment required here and label it PIA, even though no information therein will be redacted Bidders choosing to provide paper submissions shall the Procurement Officer at the address specified in the Key Information summary sheet for submission instructions Bids delivered by facsimile shall not be considered The Procurement Officer must receive all files by the IFB due date and time specified in the Key Information Summary Sheet and Section If submitted via e mail, the date and time of submission is determined by the date and time of arrival in the hix.procurement@maryland.gov e mail box. Requests for extension of this date and time will not be granted. Except as provided in COMAR , Bids received by the Procurement Officer after the due date will not be considered. 4.2 Required Bid Submissions Bidders shall include the following with their Bid: Transmittal Letter: A Transmittal Letter shall accompany the Bid. The purpose of this letter is to transmit the Bid and acknowledge the receipt of any addenda. The Transmittal Letter should be brief and signed by an individual who is authorized to commit the Bidder to the services and requirements as stated in this IFB. The Transmittal Letter should include the following: Name and address of the Bidder; Name, title, e mail address, and telephone number of primary contact for the Bidder; and Solicitation Number that the Bid is in response to; Signature, typed name, and title of an individual authorized to commit the Bidder to its Bid; Federal Employer Identification Number (FEIN) of the Bidder, or if a single individual, that individual s Social Security Number (SSN); Bidder s emm number; Bidder s MBE certification number (if applicable); Acceptance of all State IFB and Contract terms and conditions; and Acknowledgement of all addenda to this IFB Minimum Qualifications Documentation: 8

9 The Bidder shall submit any Minimum Qualifications documentation that may be required, as forth in Section 3 Bidder Minimum Qualifications Bid Price Form The Bid shall contain all price information in the format specified on IFB Attachment D Bid Form. Complete the Bid Form only as provided in the Bid Pricing Instructions. Do not amend, alter, or leave blank any items on the Bid Form or include additional clarifying or contingent language on or attached to the Bid Form. Failure to adhere to any of these instructions may result in the Bid being determined to be non responsive and rejected by MHBE Completed Required Attachments For submissions, submit one (1) copy of each with original signatures. Attachment B Bid/Proposal Affidavit Attachment E Federal Funds Attachment, including E 1 and E Electronic Transactions Authorized This procurement authorizes electronic transactions in keeping with COMAR et seq. and pursuant to the Maryland Uniform Electronic Transactions Act, Maryland Code Annotated, Commercial Law Article, Title In addition to specific electronic transactions specifically authorized in other sections of this IFB, including its attachments (e.g., Sections 4.1 (One Part Submission Via Preferred) and 6 (Bidder agrees to accept payments by electronic funds transfer)) and subject to the exclusions noted in Section 4.3.3, below, the following transactions are authorized to be conducted by electronic means on the terms described: A. The Procurement Officer may conduct the procurement using emm, the Maryland Health Benefit Exchange website at us/procurement/ or e mail to issue: a) the solicitation (e.g., the IFB/RFP); b) any amendments; c) pre Bid/Proposal conference documents; d) questions and responses; e) communications regarding the solicitation or Bid/Proposal to any Bidder/Offeror or potential Bidder/Offeror; f) notices of award selection or non selection; and g) the Procurement Officer s decision on any Bid protest or Contract claim. h) Contract award i) Contract Modifications B. A Bidder/Offeror or potential Bidder/Offeror may use e mail to: a) submission of initial Bids or Proposals; b) ask questions regarding the solicitation; 9

10 c) reply to any material received from the Procurement Officer by electronic means that includes a Procurement Officer s request or direction to reply by e mail or facsimile, but only on the terms specifically approved and directed by the Procurement Officer; d) submit a "No Bid/Proposal Response" to the solicitation. e) submit a Pre Proposal Conference Response Form f) submit a signed Contract, Contract Affidavit, Non Exchange Entity Agreement, Non Disclosure Agreement or other attachment required to be returned with an executed Contract or within five days of award g) submit a signed Contract Modification C. The Procurement Officer, the Contract Monitor, and the Contractor may conduct day to day Contract administration, except as outlined in Section E of this subsection utilizing e mail, facsimile, or other electronic means if authorized by the Procurement Officer or Contract Monitor The following transactions related to this procurement and any Contract awarded pursuant to it are not authorized to be conducted by electronic means: a) filing of Bid Protests; b) filing of Contract Claims; or c) any transaction, submission, or communication where the Procurement Officer has specifically directed that a response from the Contractor or Bidder/Offeror be provided in writing or hard copy Any facsimile or e mail transmission is only authorized to the facsimile numbers or e mail addresses for the identified person as provided in the solicitation, the Contract, or in the direction from the Procurement Officer or Contract Monitor MHBE requires original signatures on all submissions that this IFB or the document form requires to be signed, including but not limited to all Transmittal Letters, Bids, the Contract or Contract Modifications resulting from this IFB. However, the Contractor may scan and submit electronically any document containing such original signature(s). The Contract and other contractual documents each may be signed by the Parties in counterparts, each of which shall be deemed to be an original but all of which, taken together, shall constitute one and the same Contract. 4.4 Documents Required upon Notice of Recommendation for Contract Award Upon receipt of a Notification of Recommendation for Contract Award, the following documents shall be completed and submitted electronically, via , by the recommended awardee within five (5) Business Days, unless noted otherwise: Attachment A Standard Contract Attachment C Contract Affidavit SECTION 5 BASIS FOR AWARD 10

11 A contract shall be awarded to the responsible Bidder submitting a responsive Bid with the most favorable Total Bid Price for providing the products/services as specified in this IFB. The most favorable Total Bid Price will be the lowest price on IFB Attachment D Bid Form. SECTION 6 GENERAL INFORMATION AND REQUIREMENTS The Contract that results from this IFB shall be a firm fixed price contract. The Contract resulting from this IFB shall be for a period of 1 year as of the date of the full execution by the Parties. The Contractor shall provide services upon receipt of a written Notice to Proceed. Audit, confidentiality, document retention, patents, copyrights & intellectual property, warranty and indemnification obligations under the Contract and any other obligations specifically identified in the Contract shall survive termination of the Contract. If it becomes necessary to revise this IFB before the due date for bids, addenda will be provided to all prospective Bidders who were sent this IFB or otherwise are known by the Procurement Officer to have obtained this IFB. In addition, addenda to the IFB will be posted on the MHBE web page and through emaryland Marketplace. Addenda made after the due date for bids will be sent only to those Bidders who submitted a timely bid. The MHBE reserves the right to cancel this IFB, accept or reject any and all bids (in whole or in part) received in response to this IFB, to waive or permit cure of minor irregularities, The MHBE also reserves the right, in its sole discretion, to award a Contract based upon the written bids received without prior discussions or negotiations. The MHBE is not responsible for Contractor s costs incurred in preparing and submitting a bid or in performing any other activities relative to this solicitation. By submitting a response to this solicitation, the Bidder agrees to accept payments by electronic funds transfer if selected for Contract unless the State Comptroller s Office grants an exemption. Payment by electronic funds transfer is mandatory for contracts exceeding $100,000. The selected Contractor shall register using the COT/GAD X 10 Vendor Electronic Funds (EFT) Registration. Request Form. Any request for exemption must be submitted to the State Comptroller s Office for approval at the address specified on the COT/GAD X 10 form and must include the business identification information as stated on the form and include the reason for the exemption. The COT/GAD X 10 form can be downloaded at: 10.pdf. The sole point of contact at the MHBE for purposes of this IFB, prior to the award of any contract, is the Procurement Officer at the address listed below: Name: Michelle Compton Title: Procurement Officer Address: 750 E. Pratt Street, 16th Floor, Baltimore, MD Address: hix.procurement@maryland.gov 11

12 The MHBE may change the Procurement Officer and/or the Contract Monitor at any time by written notice. The individual responsible for day to day administration and management of the Contract issued pursuant to this IFB shall be the Contract Monitor identified below: Name: Greg Yaculak Address: 750 East Pratt Street, 16 th Floor, Baltimore, MD address: The MHBE may change the Procurement Officer and/or the Contract Monitor at any time by written notice. Bids submitted in response to this IFB are irrevocable for 120 days following the closing date of bids. This period may be extended at the Procurement Officer's request only with the Bidder's written agreement. SECTION 7 ATTACHMENTS Attachment A Standard Contract Must be signed and submitted within five (5) business days of notification of proposed Contract award Attachment B Bid/Proposal Affidavit Must be completed and submitted with the Bid Attachment C State Contract Affidavit Must be completed and submitted within five (5) business days of notification of proposed Contract award Attachment D Bid Form Must be completed and submitted with the Bid Attachment E Federal Funds Attachment This attachment describes requirements and restrictions associated with the federal funds to be used in this Contract. Execution of a Contract awarded as a result of this IFB indicates a Contractor s agreement with all applicable requirements and restrictions. This attachment must be completed and submitted with the Bid. 12

13 ATTACHMENT A CONTRACT McAfee Antivirus Software and Support IFB # MDM THIS CONTRACT (the Contract ) is made as of the Effective Date defined below by and between [Contractor s name] (the Contractor ) and the MARYLAND HEALTH BENEFIT EXCHANGE, a unit of the STATE OF MARYLAND (the MHBE ). The Contractor and the MHBE each are a Party and, together, are the Parties. In consideration of the premises and the covenants herein contained, the Parties agree as follows: 1. Definitions In this Contract, the following words have the meanings indicated: 1.1 Bid means the Contractor s Bid dated. 1.2 COMAR means Code of Maryland Regulations. 1.3 Contract Monitor means the MHBE employee identified in Section 6 of the IFB as the Contract Monitor or a successor designated by the MHBE. 1.4 Contractor means [Contractor s name] whose principal business address is [Contractor s primary address] and whose principal office in Maryland is [Contractor s local address. 1.5 Effective Date means the date on which the last of the two Parties signs this Contract. 1.6 MHBE means the Maryland Health Benefit Exchange. 1.7 IFB means the Invitation for Bids for McAfee Antivirus Software and Support IFB # MDM , and any addenda thereto issued in writing by the MHBE. 1.8 Procurement Officer means the MHBE employee identified in Section 6 of the IFB as the Procurement Officer or a successor designated by the MHBE. 1.9 Software means the object code version of computer programs licensed pursuant to this Contract. Embedded code, firmware, internal code, microcode, and any other term referring to software that is necessary for proper operation is included in this definition of Software. Software includes all prior, current, and future versions of the Software and all maintenance updates and error corrections. Software also includes any upgrades, updates, bug fixes or modified versions or backup copies of the Software licensed to the MHBE by Contractor or an authorized distributor State means the State of Maryland. 13

14 2. Scope of Contract 2.1 The Contractor shall provide products and services as described in the IFB for McAfee Antivirus Software and Supportawarded in accordance with Exhibits A D listed in this section and hereby incorporated as part of this Contract. If there is any conflict between this Contract and the Exhibits, the terms of the Contract shall govern. If there is any conflict among the Exhibits, the following order of precedence shall determine the prevailing provision: Exhibit A The IFB Exhibit B State Contract Affidavit, executed by the Contractor and dated. Exhibit C The Federal Funds Attachment (Attachment E to the IFB, including E 1 and E 2) Exhibit D The Bid 2.2 The Procurement Officer may, at any time, by written order, make changes in the work within the general scope of the Contract or the IFB. No other order, statement, or conduct of the Procurement Officer or any other person shall be treated as a change or entitle the Contractor to an equitable adjustment under this section. Except as otherwise provided in this Contract, if any change under this section causes an increase or decrease in the Contractor s cost of, or the time required for, the performance of any part of the work, whether or not changed by the order, an equitable adjustment in the Contract price shall be made and the Contract modified in writing accordingly. The Contractor must assert in writing its right to an adjustment under this section within thirty (30) days of receipt of written change order and shall include a written statement setting forth the nature and cost of such claim. No claim by the Contractor shall be allowed if asserted after final payment under this Contract. Failure to agree to an adjustment under this section shall be a dispute under the Disputes clause. Nothing in this section shall excuse the Contractor from proceeding with the Contract as changed. 2.3 While the Procurement Officer may, at any time, by written change order, make unilateral changes in the work within the general scope of the Contract as provided in Section 2.2 above, the Contract may be modified by mutual agreement of the parties, provided: (a) the modification is made in writing; (b) all parties sign the modification; and (c) all required approvals are obtained. 2.4 Contracts awarded in violation of the MHBE Procurement Policies and Procedures are voidable at the election of MHBE. 3. Period of Performance. 3.1 The Contract shall start as of the date of full execution by the Parties. From this date, the Contract shall be for a period of one year. 3.2 Audit, confidentiality, document retention, patents, copyrights and intellectual property, warranty and indemnification obligations under this Contract and any other obligations specifically identified shall survive expiration or termination of the Contract. 4. Consideration and Payment 14

15 4.1 In consideration of the satisfactory performance of the work set forth in this Contract, the MHBE shall pay the Contractor in accordance with the terms of this Contract and at the prices quoted in the Bid. 4.2 Payments to the Contractor shall be made no later than thirty (30) days after the MHBE s receipt of a proper invoice for services provided by the Contractor, acceptance by the MHBE of services provided by the Contractor, and pursuant to the conditions outlined in Section 4 of this Contract. Each invoice must include the Contractor s Federal Tax Identification or Social Security Number for a Contractor who is an individual which is [Contractor s FEIN or SSN ]. Charges for late payment of invoices other than as prescribed at Md. Code Ann., State Finance and Procurement Article, are prohibited. Invoices shall be submitted to the Contract Monitor at hbe.finance@maryland.gov. Electronic funds transfer shall be used by the MHBE to pay Contractor pursuant to this Contract and any other State payments due Contractor unless the State Comptroller s Office grants Contractor an exemption. 4.3 In addition to any other available remedies, if, in the opinion of the Procurement Officer, the Contractor fails to perform in a satisfactory and timely manner, the Procurement Officer may refuse or limit approval of any invoice for payment, and may cause payments to the Contractor to be reduced or withheld until such time as the Contractor meets performance standards as established by the Procurement Officer. 4.4 Payment of an invoice by the MHBE is not evidence that services were rendered as required under this Contract. 4.5 Contractor s emarylandmarketplace vendor ID number is (Contractor s emm number). 5. Patents, Copyrights, and Intellectual Property 5.1 If the Contractor furnishes any design, device, material, process, or other item, which is covered by a patent, trademark or service mark, or copyright or which is proprietary to, or a trade secret of, another, the Contractor shall obtain the necessary permission or license to permit the State to use such item or items. 5.2 Except as provided in Section 5.4 of this Contract, the Contractor agrees that all documents and materials, including but not limited to, reports, drawings, studies, specifications, estimates, tests, maps, photographs, designs, software, equipment, graphics, mechanical, artwork, computations and data prepared by or for the Contractor for purposes of this Contract (Work Product) shall become and remain the sole and exclusive property of the State and shall be available to the MHBE at any time. The MHBE shall have the right to use the same without restriction and without compensation to the Contractor other than that specifically provided by this Contract. 5.3 Except as provided in Section 5.4 of this Contract, the Contractor agrees that at all times during the term of this Contract and thereafter, the Work Product shall be "works made for hire" as that term is interpreted under U.S. copyright law and shall be owned by the State. Ownership includes the right to copyright, patent, register and the ability to transfer these rights and all information used to formulate such Work Product. In the event any Work Product is or may not 15

16 be considered a work made for hire under applicable law, Contractor assigns and transfers to the State the entire right, title and interest in and to all rights in the Work Product and any registrations and copyright applications relating thereto and any renewals and extensions thereof. Contractor shall execute all documents and perform such other proper acts as the State may deem necessary to secure for it the rights pursuant to this section. 5.4 Notwithstanding anything to the contrary in this Contract, to the extent (i) the Work Product incorporates any commercial off the shelf software (COTS) and/or any Pre Existing Intellectual Property or (ii) any COTS and/or Pre Existing Intellectual Property (other than a computer s operating system, supported internet browser, browser accessibility software or hardware if needed by the user, and software required to access a commonly available data transmission tool or export format) is required to access, install, build, compile or otherwise use the Work Product (such COTS and Pre Existing Intellectual Property individually and collectively referred to herein as Third party Intellectual Property, which shall be the sole property of Contractor or its third party licensors, as applicable), Contractor hereby grants, on behalf of itself and any third party licensors, to the State a royalty free, paid up, non exclusive, unrestricted, unconditional, irrevocable, worldwide right and license, with the right to use, execute, reproduce, display, perform, distribute copies of internally, modify and prepare derivative works based upon, such Third party Intellectual Property as may be necessary for the State to use the Work Product for the purposes for which such Work Product was designed and intended. Pre Existing Intellectual Property means any program, utility or tool owned by Contractor or its third party licensors that was created by Contractor or its third party licensors independently from its performance of this Contract and not solely using funds from this Contract. 5.5 Subject to the terms of Section 6, Contractor shall defend, indemnify, and hold harmless the State, including, but not limited to, the Agency and its agents, officers, and employees, from and against any and all claims, costs, losses, damages, liabilities, judgments and expenses (including without limitation reasonable attorneys fees) arising out of or in connection with any claim the Work Product or any Third party Intellectual Property infringes, misappropriates or otherwise violates any Third party Intellectual Property rights. Contractor shall not enter into any settlement involving third party claims that contains any admission of or stipulation to any guilt, fault, liability or wrongdoing by the State or that adversely affects the State s rights or interests, without the State s prior written consent, which consent may be withheld in the State s sole and absolute discretion. Contractor shall be entitled to control the defense or settlement of such claim (with counsel reasonably satisfactory to the State), provided that the State will, upon requesting indemnification hereunder: (a) provide reasonable cooperation to Contractor in connection with the defense or settlement of any such claim, at Contractor s expense; and (b) be entitled to participate in the defense of any such claim. Contractor s obligations under this section will not apply to the extent any Third party Intellectual Property infringes, misappropriates or otherwise violates any third party intellectual rights as a result of modifications made by the State in violation of the license granted to the State pursuant to section 5.4; provided that such infringement, misappropriation or violation would not have occurred absent such modification. 5.6 Without limiting Contractor s obligations under Section 5.5, if all or any part of the Work Product or any Third Party Intellectual Property is held, or Contractor or the State reasonably determines that it could be held, to infringe, misappropriate or otherwise violate any third party 16

17 intellectual property right, Contractor (after consultation with the State and at no cost to the State): (a) shall procure for the State the right to continue using the item in accordance with its rights under this Contract; (b) replace the item with an item that does not infringe, misappropriate or otherwise violate any third party intellectual property rights and, in the State s sole and absolute determination, complies with the item s specifications, and all rights of use and/or ownership set forth in this Contract; or (c) modify the item so that it no longer infringes, misappropriates or otherwise violates any third party intellectual property right and, in the State s sole and absolute determination, complies with the item s specifications and all rights of use and/or ownership set forth in this Contract. 5.7 Except for any Pre Existing Intellectual Property and Third Party Intellectual Property, Contractor shall not acquire any right, title or interest (including any intellectual property rights subsisting therein) in or to any goods, software, technical information, specifications, drawings, records, documentation, data or any other materials (including any derivative works thereof) provided by the State to the Contractor. Notwithstanding anything to the contrary herein, the State may, in its sole and absolute discretion, grant the Contractor a license to such materials, subject to the terms of a separate writing executed by the Contractor and an authorized representative of the State. 5.8 Contractor, on behalf of itself and its subcontractors, hereby agrees not to incorporate, link, distribute or use any Third party Intellectual Property in such a way that: (a) creates, purports to create or has the potential to create, obligations with respect to any State software (including any deliverable hereunder), including without limitation the distribution or disclosure of any source code; or (b) grants, purports to grant, or has the potential to grant to any third party any rights to or immunities under any State intellectual property or proprietary rights. Without limiting the generality of the foregoing, neither Contractor nor any of its subcontractors shall incorporate, link, distribute or use, in conjunction with the Work Product, any code or software licensed under the GNU General Public License ( GPL ), Lesser General Public License ( LGPL ), Affero GPL ( AGPL ), European Community Public License ( ECPL ), Mozilla, or any other open source license, in any manner that could cause or could be interpreted or asserted to cause any State software (or any modifications thereto) to become subject to the terms of the GPL, LGPL, AGPL, ECPL, Mozilla or such other open source software. 5.9 Without limiting the generality of the foregoing, neither Contractor nor any of its subcontractors shall use any software or technology in a manner that will cause any patents, copyrights or other intellectual property which are owned or controlled by the State or any of its affiliates (or for which the State or any of its subcontractors has received license rights) to become subject to any encumbrance or terms and conditions of any third party or open source license (including, without limitation, any open source license listed on (each an Open Source License ). These restrictions, limitations, exclusions and conditions shall apply even if the State or any of its subcontractors becomes aware of or fails to act in a manner to address any violation or failure to comply therewith. No act by the State or any of its subcontractors that is undertaken under this Contract as to any software or technology shall be construed as intending to cause any patents, copyrights or other intellectual property that are owned or controlled by the State (or 17

18 for which the State has received license rights) to become subject to any encumbrance or terms and conditions of any Open Source License The Contractor shall report to the MHBE, promptly and in written detail, each notice or claim of copyright infringement received by the Contractor with respect to all Work Product delivered under this Contract. 6. Indemnification 6.1 Contractor shall indemnify, defend, and hold the State, its directors, officers, employees and agents harmless from third party liability for tangible property damage, bodily injury and death, and for fraud or willful misconduct of Contractor, including all related defense costs and expenses (including reasonable attorneys fees and costs of investigation, litigation, settlement, judgments, interest and penalties) arising from or relating to the performance of the Contractor or its subcontractors under this Contract. 6.2 The State has no obligation to provide legal counsel or defense to the Contractor or its subcontractors in the event that a suit, claim or action of any character is brought by any person not party to this Contract against the Contractor or its subcontractors as a result of or relating to the Contractor's obligations under this Contract. 6.3 The State has no obligation for the payment of any judgments or the settlement of any claims against the Contractor or its subcontractors as a result of or relating to the Contractor's obligations under this Contract. 6.4 The Contractor shall immediately notify the Procurement Officer of any claim or suit made or filed against the Contractor or its subcontractors regarding any matter resulting from or relating to the Contractor's obligations under the Contract, and will cooperate, assist, and consult with the State in the defense or investigation of any claim, suit, or action made or filed against the State as a result of or relating to the Contractor's performance under this Contract. 6.5 Section 6 shall survive expiration of this Contract. 7. Confidential or Proprietary Information and Documentation 7.1 Subject to the Maryland Public Information Act and any other applicable laws and the implementation of regulations promulgated pursuant thereto, all confidential or proprietary information and documentation relating to either party (including without limitation, any information or data stored within the Contractor s computer systems) shall be held in absolute confidence by the other party. Each party shall, however, be permitted to disclose relevant confidential information to its officers, agents, and employees to the extent that such disclosure is necessary for the performance of their duties under this Contract, provided that the data may be collected, used, disclosed, stored, and disseminated only as provided by and consistent with the law. The provisions of this section shall not apply to information that: (a) is lawfully in the public domain; (b) has been independently developed by the other party without violation of this Contract; (c) was already in the possession of such party; (d) was supplied to such party by a 18

19 third party lawfully in possession thereof and legally permitted to further disclose the information; or (e) which such party is required to disclose by law. 7.2 This Section 7 shall survive expiration or termination of this Contract. 8. Loss of Data In the event of loss of any State data or records where such loss is due to the intentional act or omission (any failures to act when Contractor has a duty to act) or negligence of the Contractor or any of its subcontractors or agents, the Contractor shall be responsible for recreating such lost data in the manner and on the schedule set by the Contract Monitor. The Contractor shall ensure that all data is backed up and recoverable by the Contractor. Contractor shall use its best efforts to assure that at no time shall any actions undertaken by the Contractor under this Contract, or any failures to act when Contractor has a duty to act, damage or create any vulnerabilities in data bases, systems, platforms, and/or applications with which the Contractor is working hereunder. 9. Non Hiring of Employees No official or employee of the State, as defined under Md. Code Ann., General Provisions Article, 5 101, whose duties as such official or employee include matters relating to or affecting the subject matter of this Contract, shall, during the pendency and term of this Contract and while serving as an official or employee of the State, become or be an employee of the Contractor or any entity that is a subcontractor on this Contract. 10. Disputes 10.1 As used herein, a claim means a written demand or assertion by one of the parties seeking, as a legal right, the payment of money, adjustment, or interpretation of contract terms, or other relief, arising under or relating to this Contract. A voucher, invoice, or request for payment that is not in dispute when submitted is not a claim. However, if the submission subsequently is not acted upon in a reasonable time, or is disputed as to liability or amount, it may be converted to claim for the purpose of this clause Within thirty (30) days of when the Contractor knows or should have known of the basis for a claim relating to the Contract, it shall file a written notice of claim on its letterhead to the Procurement Officer. Contemporaneously with, or within sixty (60) days after filing the notice of claim, the Contractor shall submit the written claim to the Procurement Officer. The Procurement Officer shall issue a final, written decision on the claim as expeditiously as possible. Any final decision of the Procurement Officer may award a Contract claim only for those expenses incurred not more than thirty (30) days before the contractor initially filed its notice of claim If the final decision of the Procurement Officer grants the claim in part and denies the claim in part, the MHBE shall pay the Contractor the undisputed amount. Payment of the partial claim will not be construed as an admission of liability by the MHBE and does not preclude the MHBE from recovering the amount paid if a subsequent determination modifies the final decision. 19

20 10.4 Within thirty (30) days of receipt of the final decision of the Procurement Officer, the Contractor may file an appeal to the Executive Director of the MHBE for claims for monetary amounts less than $75,000, and to the Board of Trustees for either claims for monetary amounts over $75,000 or for claims involving non monetary relief. If submitted to the Executive Director, a final decision resolving the appeal will be issued by the Executive Director. If submitted to the Board of Trustees, the Board of Trustees may determine that a hearing would assist in the resolution of any appeal. The Board of Trustees may elect to hold the hearing itself or may refer the matter for a hearing to a panel consisting of two or more members of the Board of Trustees or may refer the matter to a neutral decision maker. A final decision resolving the appeal will be issued by a vote of the Board of Trustees. The Contractor s timely appeal to the Executive Director or the Board of Trustees shall be a strict condition precedent to the contractor pursuing any legal rights which it alleges or which may exist in any other forum Pending resolution of a claim, the Contractor shall proceed diligently with the performance of the Contract in accordance with the procurement officer s decision Nothing in this section shall be construed to limit the MHBE s right to withhold payments from the Contractor, assess liquidated damages against the Contractor, direct the Contractor to perform pursuant to the terms of the Contract or any written change order, or to exercise any other rights allowed by Contract or at law. 11. Maryland Law 11.1 This Contract shall be construed, interpreted, and enforced according to the laws of the State of Maryland The Md. Code Ann., Commercial Law Article, Title 22, Maryland Uniform Computer Information Transactions Act, does not apply to this Contract or to any purchase order or Notice to Proceed issued under this Contract Any and all references to the Maryland Code, Annotated contained in this Contract shall be construed to refer to such Code sections as are from time to time amended. 12. Nondiscrimination in Employment The Contractor agrees: (a) not to discriminate in any manner against an employee or applicant for employment because of race, color, religion, creed, age, sex, marital status, national origin, sexual orientation, sexual identity, ancestry, or disability of a qualified individual with a disability; (b) to include a provision similar to that contained in subsection (a), above, in any underlying subcontract except a subcontract for standard commercial supplies or raw materials; and (c) to post and to cause subcontractors to post in conspicuous places available to employees and applicants for employment, notices setting forth the substance of this clause. 13. Contingent Fee Prohibition The Contractor warrants that it has not employed or retained any person, partnership, corporation, or other entity, other than a bona fide employee, bona fide agent, bona fide salesperson, or commercial 20

21 selling agency working for the business, to solicit or secure the Contract, and that the business has not paid or agreed to pay any person, partnership, corporation, or other entity, other than a bona fide employee, bona fide agent, bona fide salesperson, or commercial selling agency, any fee or any other consideration contingent on the making of this Contract. 14. Non availability of Funding If the General Assembly fails to appropriate funds or if funds are not otherwise made available for continued performance for any fiscal period of this Contract succeeding the first fiscal period, this Contract shall be canceled automatically as of the beginning of the fiscal year for which funds were not appropriated or otherwise made available; provided, however, that this will not affect either the State s rights or the Contractor s rights under any termination clause in this Contract. The effect of termination of the Contract hereunder will be to discharge both the Contractor and the State from future performance of the Contract, but not from their rights and obligations existing at the time of termination. The Contractor shall be reimbursed for the reasonable value of any nonrecurring costs incurred but not amortized in the price of the Contract. The State shall notify the Contractor as soon as it has knowledge that funds may not be available for the continuation of this Contract for each succeeding fiscal period beyond the first. 15. Termination for Cause If the Contractor fails to fulfill its obligations under this Contract properly and on time, or otherwise violates any provision of the Contract, the State may terminate the Contract by written notice to the Contractor. The notice shall specify the acts or omissions relied upon as cause for termination. All finished or unfinished work provided by the Contractor shall, at the State s option, become the State s property. The State shall pay the Contractor fair and equitable compensation for satisfactory performance prior to receipt of notice of termination, less the amount of damages caused by the Contractor s breach. If the damages are more than the compensation payable to the Contractor, the Contractor will remain liable after termination and the State can affirmatively collect damages. Termination hereunder, including the termination of the rights and obligations of the parties, shall be governed by the provisions of COMAR B. 16. Termination for Convenience The performance of work under this Contract may be terminated by the State in accordance with this clause in whole, or from time to time in part, whenever the State shall determine that such termination is in the best interest of the State. The State will pay all reasonable costs associated with this Contract that the Contractor has incurred up to the date of termination, and all reasonable costs associated with termination of the Contract; provided, however, the Contractor shall not be reimbursed for any anticipatory profits that have not been earned up to the date of termination. Termination hereunder, including the determination of the rights and obligations of the parties, shall be governed by the provisions of COMAR A(2). 17. Delays and Extensions of Time 17.1 The Contractor agrees to prosecute the work continuously and diligently and no charges or claims for damages shall be made by it for any delays, interruptions, interferences, or 21